MD high court avoids question of right to counsel in custody cases

In Frase v. Barnhart, the Maryland Court of Appeals was asked whether the Maryland Constitution requires appointment of counsel for indigent litigants in private custody proceedings. 840 A.2d 114 (Md. Ct. Spec. App. 2003). The case involved a dispute between a mother and a third-party couple who had cared for the child during the mother’s incarceration. Four members of the Court of Appeals found for the appellant parent on the merits of her custody issue without reaching the right to counsel issue.

In a two-day custody hearing, a circuit court master had declined to appoint counsel at the mother’s request and returned custody to the mother with conditions attached (including applying for and moving into special housing provided by a private social services agency and requiring her to allow the child to visit with opposing parties). In light of Troxel v. Granville, the court held that having found the mother a fit parent, and having found no exceptions rendering the mother’s custody detrimental to the child’s best interest, the court had no authority to impose conditions on custody. 840 A.2d at 128 [citing Troxel v. Granville, 530 U.S. 57 (2000)]. The court thus declined to rule on the right to counsel issue.

In a concurrence signed by three judges, Judge Cathell articulated the view that the court should have reached the issue, which the concurrence framed as “do the poor receive equal treatment in a matter concerning the most basic of fundamental, and constitutional, rights-the matter of the custody, visitation, and control of children by their parents?” Judge Cathell explained:

It is always easiest to decline to address controversial issues. It is, perhaps, the safest thing to do, even for courts. But the avoiding of such issues is best left to the political processes of the other branches of government. It is our branch of government, the judiciary, under the express and implied doctrine of the separation of powers, to which the toughest and most difficult decisions are delegated. It is our primary role to ensure that the fundamental constitutional rights, which are reserved to the people, are protected. One of the most important roles of the judiciary is to see that the laws equally protect all people-the poor as well as the wealthy … Without the willingness to address difficult and divisive issues by courts, there would not be any representation of poor criminal defendants and the public defender systems that have been created would not now exist; many school systems may not have yet been integrated; “Jim Crow” would be not only alive, but vigorous, in some areas of our country.

Frase, 840 A.2d at 131-33. The concurrence suggested the court might have found that the petitioner had a right to counsel based on the due process provision embodied in the “law of the land” referenced in article 24 of the Maryland Declaration of Rights. Judge Cathell conceded that the U.S. Supreme Court in Lassiter v. Department of Social Services had not required counsel in a state-initiated termination of parental rights case, but noted that in interpreting Maryland’s constitutional provisions, “[W]e are not constrained by the limitations the United States Supreme Court has appeared to place upon the interpretation of federal constitutional provisions.”  Cathell’s notable concurrence also referred to the right to parent as “the most fundamental of constitutional rights,” one that triggered an equal protection analysis:

[I]t is my belief that there is no judge on this Court that believes in his or her heart or mind, that justice is equal between the poor and the rich – even in the tradition hallowed halls of our appellate courts. Each of us knows, I believe, that an unrepresented parent involved in the appellate process in respect to custody, visitation or parental termination issues, when opposed by competent counsel for the opposing party (sometimes opposed by an organ of the State with its legions of lawyers), is normally not afforded the equal protection of the laws, i.e., an equal access to justice to which all citizens are entitled – in spite of the efforts of this Court to afford that equality.

Frase, 840 A.2d at 134 (Cathell, J., concurring). The concurrence added, “[I]t is especially frightening to me to think that affluent third parties, by reason of the quality of the legal representation their affluence brings them, may be able to simply overwhelm poor parents who cannot afford counsel in a civil adversarial system that is not permitted to fully ensure equality in the presentation of cases . . . The very same reason that a poor person without a lawyer cannot get a fair trial in a criminal case, applies equally in a civil case, especially of the nature of the case at bar.” 840 A.2d at 136-37.

Documents from the case can be found in the Frase v. Barnhart entry of our comprehensive bibliography.